Paweł Nowak

Internetowy Przegląd
Prawniczy TBSP UJ 2016/7
ISSN 1689-9601
Łukasz Romański
The principle and limits of freedom of contract from the
perspective of the Roman law tradition.
Streszczenie
Praca omawia elementy konstrukcyjne zasady swobody umów oraz jej ograniczeń na podstawie
polskiego kodeksu zobowiązań z 1933 roku, oraz art. 3531 kodeksu cywilnego z 1964 r. w oparciu
o recepcję prawa rzymskiego i powstałą na tym polu badań tradycję romanistyczną. Głównym
motywem jest pokazanie związków pomiędzy pojęciami i konstrukcjami wytworzonymi w
praktyce
stosowania
prawa
rzymskiego
a
współczesnymi
regulacjami
prawnymi.
Słowa kluczowe: Prawo cywilne, prawo rzymskie, Kodeks Zobowiązań, historia prawa,
europejska tradycja prawna.
Introduction
The principle of freedom of contract is currently of great importance in all law. It fulfils
an important function in the broadest sense of the freedom of determining mutual rights and
obligations between parties involved in business transactions as the “competence” to shape
the subjects of legal relations binding them(...). Sometimes freedom of contract qualifies as a

Ph.D. Candidate at Faculty of Law and Administration ,Warsaw University
72
“right” or a “subjective right”. However, the general view adopted in the science of civil law
combines these concepts with the existing legal relationship resulting from the legal event1.
Already during the Second Republic of Poland, the eminent polish civil lawyer Roman
Longchamps de Bérier wrote that this principle “pervades the entire obligation law”2. It was
not without reason that this author stressed the importance of this institution. Also today, perhaps especially now it has become a key issue for all of contract law. Just as in relation to
other structures of contemporary private law, it was shaped as a result of reflection on the
different institutions of Roman law and its subsequent reception.
According to the archaic Roman law, individual legal action, despite its formalistic
framework, posed for the parties some leeway in terms of the alignment of mutual rights and
obligations. It would be unreasonable to say that during this period this rule was fully formulated, in the form that is known today. The very notion of rules that not only refer to a system
of legal norms is the abstract recognition of repetitive behavior3. This principle is formulated
in general terms because it meets the universal function, contributing positively to the specific
normative order which is characterized by a certain element of discretion. In the case of that,
principle of freedom of contract was a result of the application more flexibility forms, give
parties more freedom in legal transactions.
The Roman jurists involved in the development of practical legal problems did not create
theoretical concept of the principle of freedom of contract. C. Kunderewicz wrote on this topic
that: “Roman lawyers have not developed any general theory of contracts, the most important
and most frequently occurring in practice source of obligations. On the basis of their decisions, only anecdotal mediaeval glossators and modern Roman law commentators created an
adequate system of general concepts”4. A similar view is expressed by P. J. Thomas: “It is a
widely shared view that the Roman jurist was practically orientated and had no penchant for
theoretical or philosophical explanations”5.This does not mean, however, that there was no
1
Z. Radwański, A. Olejniczak, Zobowiązania- część ogólna, Warszawa 2006, p. 126.
2
R. Longchamps de Bérier, Prawo zobowiązań , Poznań1948, p. 154.
3
More about the principle, comp. R. Dworkin, The Model of Rules in Law, Reason and Justice, New YorkLondon 1969.
4
C. Kunderewicz, Rzymskie prawo prywatne, Lódź 1995, p. 130.
5
P. J. Thomas, The Eternal Values of Roman Law [in:]J. Sondel, J. Reszczyński, P. Ściślicki (red.), Roman Law
as Formative of Modern Legal System, Studies in Honour of WieslawLitewski, Kraków 2003, p. 174.
73
specific legal action which would offer the possibility of laying mutual rights and obligations
with more or less freedom.
On the basis of Justinian’s codification of Roman law6, which was reborn in the university centers of Italian cities, the theoretical development of the concept of freedom of contract
came early. This took place in a context of strong growth in the political position of these
cities and in the development of mercantile practice .
Additionally, a large influence on the modern concept of contracts was consideration
formulated by the doctrine of canon law, for which the foundation was the Roman contracts
elaborated by the law glossator’s schools. This was reflected primarily in the rejection of the
already known Decree of Gratian, the Roman division of the contract which bore a ratio of
obligations and those that did not cause such effects. A consequence of this was the thought
expressed in the Decretals of Gregory IX that the whole “bare agreement” in principle should
be protected by law, or pacta quantumcunque nuda servanda sunt; thus also the principle
known today as pacta sunt servanda. In the following period there was introduced a modification of the rule of restricting agreements which arose from a commitment only to those that
were included in a serious intention (serio animo) and with consideration (deliberatione).
Both of these reasons have become the starting point for the development of the theory of the
so-called cause of obligation (causa). The achievements of mediaeval canon law were used
subsequently by the modern school of natural law, which stated that a contract validly depend
on causa of the obligation, which is connected to the nature of the obligation7.
These changes resulted in placement, for the first time, in the Napoleonic Civil Code8provision which immediately established the principle of freedom of contract. Later, indirectly
expressed also provisions of the German Civil Code BGB9, which „soon was recognized as
6
M. Sczaniecki, Powszechna historia państwa i prawa , Warszawa 2003, p. 43.
7
W. Dajczak, T. Giaro, F. Longchamps de Bérier, Prawo rzymskie. U podstaw prawa prywatnego, Warszawa
2009, p. 432.
8
K. Sójka-Zielińska, Wielkie Kodyfikacje XIX wieku, Warszawa 1970, p.90.
9
K. Sójka-Zielińska, Historia Prawa, Warszawa 2003, p. 244.
74
the incorporation of the theory of pandects”10.German Pandects were also reception of Roman
law, based on a concept developed by the school of glossators and commentators11.
The principle and limits of freedom of contract in the code of obligations of 1933 and in
the civil code of 1964
It’s found place also in the Polish Code of Obligations of 1933 (further k.z.), whose article 55 k.z. stated: “On the other hand, as long as the content and purpose of the contract is
not opposed to public policy, law or good morals”. This provision marked the relatively wide
range of free contracting and named, alongside the laws and good morals, the limitation of
the purpose and content of the agreement with the public order clause, which R. Longchamps
de Bérier stated as: “Here are, contrary to the agreement with the tax regime, the courts, the
family, the principle of individual liberty, freedom of earning a living, equality of all before
the law, with the duties of civil”12. Regulation of art. 55 k.z. was in force until the entry of the
new Civil Code of 1964 (further k.c.), which was abandoned with the inclusion of a provision
establishing the principle of the freedom of contract.
To Polish private law principle of freedom of contract amendment to the Civil Code of
28 July 199013. This was possible due to the economic system transformation in 1989. Previously, for ideological reasons, but also with its profound justification in business practice, the
principle of freedom of contract had no reason to exist. It follows that, reported for the principles of regularity, it applies only in a market economy. It can even be stated that it is one of
the legal pillars of a liberal economic system.
The principle of freedom of contract is the basic structure of all of law, and in particular
of contract law. Each agreement14is a legal action, which consists of a subjective, material and
content. The obligation (obligatio) is therefore a legal relationship15 which is formed between
10
M. Kuryłowicz, Prawo rzymskie, Historia, Tradycja, Współczesność, Lublin 2003, p. 104.
11
M. Kuryłowicz, A. Wiliński, Rzymskie prawo prywatne, Zarys wykładu,Warszawa 2008, p. 53.
12
R. Longchamps de Bérier, Prawo..., p. 154.
13
M. Safjan, Zasada swobody umów (Uwagi wstępne na tle wykładni art. 353¹), PiP nr 4 (1993), p. 12.
14
Z. Radwański, A. Olejniczak, Zobowiązania, p. 116.
15
L. Morawski, Wstęp do prawoznawstwa,Toruń 2006, p. 185.
75
two parties, where one party debtor (debitor) is obliged to provide the other side of the creditor
(creditor). Therefore, the creditor is the authorized entity and the debtor is the entity obliged.
The relationship that creates an obligation to have legal effect only between the parties to that
relationship. We say, that it is the right relative, effective inter partes as opposed to absolute
rights, effective erga omnes, to all legal entities.
In Roman law there was no uniform definition of the term obligatio. The term comes
from the Latin verb ligare, and the meaning of this concept is the word “bind”. Originally, it
meant certainly bound by a physical person who had failed to fulfil his/her obligation with
respect to another entity, often carried out by self-help. Only in a later period of development
of business transactions was there a new understanding of the concept as legally binding.
Justinian’s codification of Roman law includes the following definition: obligation est iuris
vinculum, quo necessitate adstringimur alicuius solvendae rei secundum nostre civitas iura –
“obligation is a legal node which forces us to provide something in accordance with the laws
of our state”16. However, as noted by K. Kolańczyk: “this definition does not reflect the diversity of the obligations of the Roman. Fuller definition passed the Digest of Justinian17:
Obligationum substantia non in eo consistit, ut aliquod corpus nostrum aut servitutem nostram faciat, sed ut alium nobis obstringat ad dandum aliquid vel faciendum vel praestandum
–“the
essence
of
the
obligation
is
not
to
make
us
a thing or an ease but in order to force someone else to give us something, to do or to provide
something”18. Therefore, the duty of the debtor was dare, facere, preastare.
Roman law distinguishes between four main types of contracts. Et prius videmus de his,
que ex contractu nascuntur. Harum autem quattuor genera sunt:aut enim re contrahitur obligatio, aut verbis, aut litteris, aut consensu –“first take care of those obligations that arise
from the contract. These are the four types: the fact incurs the obligations either through the
thing, either by word or by letter, or by agreement”19. K. Kolańczyk stated that: “consensual
16
I. 3,13; Translation for W. Rozwadowski, Prawo rzymskie. Zarys wykładu wraz z wyborem źródeł, Warszawa
1991, p. 277.
17
K. Kolańczyk, Prawo rzymskie, Warszawa 1999, p. 335.
18
D. 44,7,3 (Paulus libro secondo institutionem). Translation for W. Rozwadowski, Prawo..., Warszawa 1991,
p. 277.
19
G 3,89; The work has been used in the translation published in Gaius, Institutions, translated from Latin by C.
Kunderewicz, elaborated by J. Rezler, Warszawa 1982.
76
contracts are historically the youngest against the background of the previous rigor and formalism in incurring liabilities which represented a real breakthrough for the ease and freedom
of movement”20.
The Polish Civil Code of 1964 was based on the design principle of contractual freedom
in article 353¹. According to this provision, “the contracting parties may lay the legal relationship at its own discretion, as long as its content or purpose is not opposed to the properties
(nature) ratio, the law or principles of social coexistence”21.
The scope of freedom of contracts as designated by article 353¹ k.c. is similar to article
55 k.z. despite the fact that the condition in the form of public order has not been terminated
in the current regulation. There is a long-established view in the doctrine22and in case law23
that it applies indirectly since it is impossible to interpret other general clauses contained in
the Civil Code and in particular with the principles of social coexistence. It is therefore necessary to consider the content of the principle of freedom of contract as expressed in article
353¹ k.c.
According to article 353¹ k.c., the parties are not tied to the choice of the form of legal
action. They have the obligation to comply with a predetermined order for actions necessary
to conclude the contract. They can also form mutual rights and obligations according to their
own will, by forging a new relationship bond or changing an existing one. This regulation
also does not specify the characteristics of the entities which can benefit from the opportunities of free contracting. It uses the term ‘party’, which only indicates a greater number of
players than one. This is understandable given that it concerns agreements24.
As can be observed, the positive definition of freedom of contract would give unlimited
opportunity to shape mutual rights and obligations which could lead to abuse. That is why
later in the provision the legislature introduced restrictions in the form of a compliance order
20
K. Kolańczyk, Prawo..., p. 360.
21
The Act of 23 April 1964 of the Polish Civil Code (Dz. U. 1964, Nr 16 poz. 93, as amended).
22
More about this topic in: M. Olechowski, Porządek publiczny jako ograniczenie swobody umów, PiP nr 4
(1999), p.60.
23
Polish Supreme Court judgment of 12.5.2000, V CKN 1029/00, OSN 2001, Nr 6 pos. 83.
24
W. Czachórski, A. Brzozowski, M. Safjan, E. Skowrońska- Bocian (red), Zobowiązania, Warszawa 2008, p.
145.
77
and content of the agreement with the nature of the relation, law and principles of social coexistence. It should be emphasized that despite the difference in the order in which they are
cited in article 353¹, these restrictions are just as important and are exceptions to the rule,
therefore, they cannot be broadly interpreted in accordance with rule exceptiones non sunt
extendende25.
First, the Code lists the property that is the nature of the legal obligations. The question
is how this phrase should be understood. M. Safjan states: “the notion of the nature of the
legal obligation may be in the context of the relationship understood in two ways: in wider or
narrower terms (...).In a broader sense, as an obligation to respect the basic characteristics of
the legal relationship so those of its elements the failure of which could undermine the sense
of (being) referring to legal relations (...).In a narrower sense, the term ‘nature of the obligation’ should be understood as an obligation to respect the part of those specific elements
against the bond whose omission or modification would have to lead to a distortion of the
assumed model of legal relations connected with the type of relation”26.
Undoubtedly, another major limitation is the accuracy of the content and purpose of the
contract with the legal norms of iuris cogentis which are contained in the legislation at the
level of the act. These are therefore generally applicable legal acts27with unlimited material
scope which are constituted in the appropriate procedure28.It follows that the agreement
should also be in accordance with acts of standing higher in the hierarchy of sources of law
than the statutory regulation.
Of course, all of this refers to the Constitution, which contains a number of general
clauses and international agreements that were ratified with prior consent granted by statute.
It also appears that the provisions of the contract can be assessed for compliance with the legal
standards set out in the implemented regulation issued under the Act. This view is expressed
25
J. Wróblewski, Sądowe stosowanie prawa, Warszawa 1998, p.140.
26
M. Safjan, Komentarz do art. 3531 [in:] K. Pietrzykowski (red.), Komentarz do kodeksu cywilnego. T. 1, Warszawa 2008, p. 837 and n.
27
A contrario acts of internal law as regulations, orders cannot be a basis for conformity assessment content and
purpose of the contract with its provisions. They apply only those organizational units subordinate to the licensing of this type of legal norms.
28
L Garlicki, Polskie prawo konstytucyjne, Warszawa 2005, p. 135.
78
by P. Machnikowski, who stated that the “law-commented provision means all the sources of
universally binding law in Poland”29.
The last-mentioned restriction explicite in article 353¹ k.c. is a general clause in the form
of rules of social coexistence. It refers to rules of good manners as mentioned in the text of
article 55 k.z. There is no shortage in the doctrine of criticism in relation to the term “social
intercourse ”:just to cite one of them: “the Civil Code still speaks in this regard, inherited from
the socialist legislator terminology (...), which should be regarded as anachronistic and illcontractual relations in trade”30. Apart from the considerations about the adopted terminology,
a more prominent issue is the attempt to clarify the content of this principle. At this point there
appears the problem of blurring31, with expressions such as ‘good manners’ or ‘social intercourse’. Surely, the principle of social coexistence represents a matter of law contracts recognized in the community’s moral rules relating to concepts such as integrity, an honest merchant, or to generally perceived reasons of fairness. Despite these attempts to translate the
principles of social coexistence the concept is still vague semantically and their use may be
useful only in relation to a particular situation and individually marked entities. Hence the
important in this regard of the role of judicial decisions32.
The principle and limits of freedom of contract in Roman law
As was previously indicated, in ancient Roman law the principle of freedom of contract
did not apply to the extent as it does now. The question is whether or not there were de facto
activities which served in the practice of its functions. It seems that it would be difficult to
answer this question in the affirmative given the size of the business and the need to lay the
legal relationship. Already in the archaic period legal action can be observed which left the
parties a certain margin of discretion in laying down their rights and obligations. This include
29
P. Machnikowski, Komentarz do art. 353 1 [w:]: E. Gniewek (red.), Komentarz do kodeksu cywilnego, Warszawa 2008, p. 534.
30
J. Rajski, W. Kocot, K. Zaradkiewicz, Prawo umów w obrocie gospodarczym, Warszawa 2002, p. 60.
31
M. Pyziak-Szafnicka, [in:] M. Pyziak-Szafnicka (red.), Komentarz do Kodeksu Cywilnego. Część ogólna, Warszawa 2014, p. 82.
32
See the judgments of 8.01.2003, CKN 1097/00 OSP nr 4/2004; 20. 05. 2004 II CK 354/03, Biul. SN 2004, Nr
12, pos. 7; and the Polish Supreme Court judgment of 6.03.1992 OSN 1992, pos. 90; 20.07.1993 OSN 1993
pos. 208.
79
institutions such as the stipulation (stipulatio), or act with bronze and weight (actus per aes
et libram), „which also gave the possibility of a maneuver added to the act reservations (socalled lex privata and pactum fiduciae)33”.
Lex privata was developed by consensus agreement, added as a clause that allowed to
lay the legal relationship according to the needs of the parties and which eased the rigid form
actus per aes et libram. The doctrine also stresses that lex privata could fulfil the role of the
subjective right or rules of iuris dispositivi34 terms of ius civile, which in this case would be a
rule of ius cogens. While pactum fiduciae, an action which is based on fides35, it gave the
opportunity to add a stipulation that one party behave in a clearly defined manner after the
contents of the original liability resulting from negotium per eas et libram.
However, of particular importance in this regard was the stipulation, e.g.“verbis obligatio
fit ex interrogatione et responsione, velut: Dari Spondens?Spondeo, Dabis? Dabo, Promittis?
Promitto, Fidepromittis? Fidepromittio, Fideiubes? Fideiubeo, Facies? Faciam” –“Through
the words of an obligation arise the following questions and answers, such as: Do you promise
solemnly that it be given? I promise solemnly; Can you?; Do you promise? I promise; Do you
promise reliably? I promise reliably; Do you provide reliably? I assure fairness; Did you do
it? I will do it”36. According to the Gaius Institution, the liability of stipulation notice for
words
in
a particular order, but it was only the form in which the parties could lay down the mutual
rights and obligations. This did not happen because nothing determine the subject matter of
what to be given to what be promised and it is from the same stakeholders. Of course, all of
this
was
in
a raised, formalized character. Only activities praetor make more flexibility of that act, by
ensuring an informal promise can become a source of Roman contracts, and later approved
by ius civile. Naturally, this could be done initially only in strictly defined cases. This situation
changed quite late, during the end of the Roman state, after the year 472 A.D. The Constitution
of Emperor Leo, which provided validity contained a stipulation even if it did not maintain
33
W. Wołodkiewicz, Rzymskie korzenie współczesnego prawa cywilnego, Warszawa 1981, p. 82.
34
W. Dajczak, T. Giaro, F. Longchamps de Bérier, Prawo..., p. 34.
35
J. Sondel, Słownik łacińsko-polski dla prawników i historyków, Kraków 2006, p. 382, s.v. I Fides -ei.
36
G 3,93.
80
the formal requirements: “This form of liberalization stipulation is indicated as the most farreaching rapprochement in the ancient Roman law principle of freedom of contract”37.
The stipulation was one of the main forms of actions performed throughout the period of
formation of ius contractus and, as W. Wołodkiewicz wrote: “Despite its formalism it gained
more and more applications and could be used to achieve all sorts of purposes. It has become,
in its various forms of a multi-functional instrument, that grosso modo was the modern principle of freedom of contract”38.One of the sources obligationes have been recognised by the
ius civile, and which the law confers protection in the form of the possibility of complaint
(actio
personam)39.
in
K. Kolańczyk noted in this topic that: “The same three words, further specifying the obligation
of the debtor to the creditor (dare, facere,praestare) also occur in the definition of Gaius actio
in persona”40. Gaius says: ‘in personam actio est, qua agimus cum aliquo, qui nobis vel contractu vel ex delicto obligatus est, id est cum intendimus dare facere praestare oportere –
Actio in personam is when we file a lawsuit against someone who is against us and is obliged
to either contract or tort, that is, when we say that he/she should give us something (dare),
make (facere), or provide something (praestare)”41.
With the development of trade and related, new economic activities, some not recognized
by the ius civile contract gained legal protection granted by praetor. One procedure undoubtedly contributed to the emergence and development of the formula. As a result, in addition to
the existing obligations civiles there developed a new category obligations honorariae, as
indicated by Gaius who wrote that ius praetor iumest, quod praetoresintroduxeruntadiuvandi,
velsupplendi, velcorrigendiiuriscivilis gratia propter utilitatempublicam. –“praetor law is that
because for public benefit were introduced magistrates to assist, supplement or correct the
civil law”42. Praetor activity involving the above-mentioned activities soothed the formalism
37
W. Dajczak, T. Giaro, F. Longchamps de Bérier, Prawo..., p. 431.
38
W. Wołodkiewicz, Rzymskie..., p.82.
39
A. Dziadzio, Powszechna historia prawa, Warszawa 2008, p. 346.
40
K. Kolańczyk, Prawo..., p. 336.
41
G. 4,2.
42
D. 1,1,7,1 (Papinianus libro secondo definitionum). Translation for B. Szolc-Nartowski, Digesta Justyniańskie. Księga pierwsza, Warszawa 2007, p.16.
81
of ius civile, giving the parties the possibility of more flexibility and to freely determine their
relationship as legal and economic. We cannot forget that ius honorarium protects only certain
types of agreements in their specific content and form of conclusion.
Directory contracts that were actionable, whether due to the protection granted in the
edict of the praetor or through recognition by theiriuscivile, were already mentioned in the
stipulation as well as in the loan agreement (mutuum), lending (commodatum), storage
(depositum), trust (fiducia), order (mandatum), society (societas), sale (emptiovenditio) and
contract loactioconductio. This was the “core of the Roman obligations ex contractu”43, but
still functioned informal agreement, which not given the complaint, hence they were known
as pacta nuda, i.e. literally called a “bare contract”. They were not the statute of the contract
according to Roman law. Parties could conclude a “bare contract”, but there was a reasonable
risk on behalf of the creditor that the rightful provision would not be met and he/she would
not have the legal possibility to pursue his/her claims because ex nudo enimpacto inter cives
Romanos actio non nascitur–“with bare agreement between Roman citizens no obligation
arises”44. In order to protect the creditor, in the classical period a rule was adopted that in a
situation when one of the parties fulfilled its benefitto the agreement the other side also had a
duty to fulfil its duties. This was quite a relaxation of the restrictive limit in pursuing claims
ex nudo pacto.
In case only certain types of agreements have been challenged and recognized under ius
civile as the appropriate source of obligations. For this process the jurisprudence of Roman
law create new term as a “nominalism contract”45. The catalogue of contracts protected by the
award of a complaint actio in personam expanded gradually, which took place mainly as a
result of praetor activities. A praetor did not give protection informal agreements: quae neque
dolo malo, neque adversus leges, plebis scita, senatus consulta, decreta directa, principium,
neque quo fraus cui eorum fiat facta erunt, servabo 46. Of particular interest seems to be the
last of the conditions relating to circumvention of the law, which is defined by Paulus as
43
W. Dajczak, T, Giaro, F. Longchamps de Bérier, Prawo..., p. 430.
44
PS. 2,14,1. Translation for A. Dębiński, Rzymskie prawo prywatne, Warszawa 2007, p. 307.
45
W. Wołodkiewicz, Czy prawo rzymskie przestało istnieć?, Kraków 2003, p. 72-73.
46
D 2,1,4.7 (Ulpianuslibro quarto ad edictum).
82
contra legem facit, qui id facit quod lex prohibet, in fraudem vero, qui salvis verbis legis
sententiam eius circumvenit 47.
In conclusion, the freedom of contract was never absolute and there were always factors
that limited it. These were present in nature and associated with the content of activities as
well as with the subjective aspect, which was associated with the position of the individual in
the community of Roman society and the situation which was dependent on status: libertatis,
civitatis i familiae.
At the beginning of these considerations it would be worth considering the following
sentence: imposibilium nulla obliagtio est48– “what is impossible not create obligations”. This
rule expresses the fundamental principle of limiting the freedom of contract, and it cannot
agree on the benefits of which at least one party is unable to meet the objective reasons. Implicated also conclude agreements provided (condicio), which is known, that cannot be met.
Any such agreement will not give rise to a liability relation because item siquis sub eaconicionestipuletur, quae existere non potest, velutsi“sidigitocaelumtetigerit”, inutliseststipula–“also,
tion
if
someone
receives
a formal pledge under conditions, which is not possible- for example if it touches a finger to
the sky, that is ineffective promise and doesn’t create obligation ”49.
Another element which constitutes a fairly serious limitation was extended precisians,
especially during the archaic and before the classic period. It manifested itself in the binding
force of rigid rules that governed the order to make certain gestures or speak the right words
in the right order. Undoubtedly, this was a major inconvenience, and every mistake resulted
in the annulment of these activities. These limits were important, but using current terminology
they
were
of
a procedural nature. This does not mean, however, that the parties were bound only by requirements of a formal nature. Just as today, in ancient Roman law there were limitations in
the form of the compatibility of the agreement with the acts of law and the constraints of an
axiological nature. Pacta quae contra leges contitutionesque vel contra bonos mores fiunt,
47
D. 1.3.29 (Paulus libro V ad legem Iuliam et Papiam) Translation for B. Szolc-Nartowski, Digesta Justyniańskie,Księga pierwszaWarsaw 2007, p.45.
48
This rule is still under private law. SeeZ. Radwański (red.) System Prawa prywatnego, Prawo cywilne- część
ogólna, Warszawa 2004, p. 223.
49
G. 3,98.
83
nullam vim habere indubitati iuris es. –“Contracts which are contrary to the law, the imperial
constitution or morality, without a doubt, they have no legal force”50.
The first conclusion to be drawn in connection with the reading portion of the Constitution of the Emperor Caracalla is a statement that if the agreement is contrary to the acts of law
or the laws and constitutions of this emperor have no legal effect which are provided for in its
content, as ius publicum privatorum pactis mutari non potest–“public law cannot be changed
by agreements among individuals”51. In addition, the agreement could not be concluded for a
wicked purpose as pacta, quae turpem causam continent, non sunt observanda. But there is a
problem of interpretation in relation to restrictions which are good manners or a wicked purpose. This is associated with the their “axiological load”.
The premise of good manners limiting the freedom of contracting can also be found in
a speech of Paulus, in that it relates to a contract of mandate which had the character of Roman
contracts: illud constant, siquis de ea re mandet, quae contra bonos mores est, non contra
obligationem –“it is certain that if someone gives order , which is against good morals, does
not create obligations”52. Paulus’ opinion can derive a general rule that other agreements recognized by the ius civile for contracts are subject to this restriction. Unfortunately, the jurist
does not explain how one should understand the concept of good morals or the criteria of
wicked purpose of the activity and what the conditions are for assessment of the contract as
wicked or incompatible with morality. Unfortunately, Roman jurists do not explain these concepts.
Concluding remarks
The problem of limits of freedom of contract remains, moreover, in modern times. Just
recall the general clause of rules of social coexistence and reflect on its meaning, depending
on the different context. This forces the use of discretionary methods for resolving contractual
provisions which are within good manners or principles of social coexistence. This may be
controversial, and different interpretations depending on worldview and values appear. But
50
C. 2,3,6.
51
D. 2,14,38 (Papinianus libro secundo quaestionum). Translation for W. Rozwadowski, Prawo rzymskie. Zarys
wykładu wraz z wyborem źródeł, Warszawa 1991, p. 230.
52
G. 3,157.
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this is not the only contiguous point in which ius Romanum mingles with contemporary regulations. This kind of influence of ancient Roman law, and it past or even nowadays reflection
is much more. It was impossible to present them all, even with regard to the issue of freedom
of contract. This indicates the wide range of Roman law influence to current positive and
judicial law. It is worth to notice what H. Kupiszewski wrote: “Studies of Roman institutions
are simply an irreplaceable value in teaching. Cupida legum iuventus brings comprehensive
and at the same time precise legal terminology. They teach the concepts of construction of
modern civil law”53.
***
The principle and limits of freedom of contract from the perspective of the Roman law tradition.
Summary: The work discusses the structural elements of the principle of freedom of contract and its
limitations under the Polish Code of Obligations of 1933 and the current regulation of art. 353 1 of the
Civil Code of 1964 from the point of view of the Roman law tradition. The main aim is to show the
relationships between concepts and structures as developed in the practice of Roman law and in contemporary legal regulations.
Key words: Civil law, Roman law, Code of Obligations, Civil Code, history of law, European legal
tradition.
53
H. Kupiszewski, Prawo rzymskie a współczesność, Warszawa 1988, p. 218.
85